parking fine kpc/ticket not displayed correctly

frobertson

I have read through the newbies thread but got so confused with legal case histories and which I should quote that are current and not now irrelevant. Feel my brain cant possibly climb this mountain and can see how older people who aren't academic are helpless to form a successful appeal.
It wasn't a fluttering ticket scam. We paid well over the time we were there but when my son tried to stick the ticket on the dashboard it wasn't sticky and when we returned we found the fine on the window and the ticket on the floor. It is a very blowly coastal beach area so when he shut the door, turning from the wind, and carrying a surf board, he didn't notice the ticket had dropped to the floor. We still have the photocopy of the correct ticket and following the advice in a similar moneysavingsexpert thread we wrote a letter to KPC with the ticket and explaining the above. They rejected the letter and we then contacted Popla who asked us to forward them our evidence, ticket copies etc. and now have a popla number. KPC have come back with their appeal with a photograph of the empty dashboard and car seat (obvious, as the ticket was found on the floor) and also photographs of the display sign and the parking fine. Popla have now contacted us to say we have 7 days to appeal.
....Reading through the threads and the appeals that were successful, it seems you need a solicitor to know how to word one and work it out with the various historic test cases. But many thanks in advance for anyone's help if at all possible.

frobertson

Have started new thread but Please Note ....
Re Kernow Parking Solutions...On many threads it says that you can say that KPS is Not a company so they have no contract. Have just discovered that KPS now does appear to have become a company with Robert Ley as the sole director appointed on 25th April 2016. Will post this also on new thread but thought important for anyone, who like me, has ended up here after hours of searching....
thanks all

Edna_Basher

Hi frobertson

It’s interesting to note that Robert Ley has now set up a new company, Kernow Parking Solutions Ltd.

Out of interest, what was the date of the parking “event”? Presumably this was before 25th April, the date of this new company’s incorporation?

Given your explanation that KPS has provided you with various pieces of evidence and that POPLA has now informed you that you have 7 days to “appeal”, it sounds like you may already be at the stage of having to rebut KPS’s evidence?

It would be helpful if you could clarify whether you have already submitted your initial appeal to POPLA.

Edit - I've just spotted your post on CNSam's thread where you explained that you have already submitted an initial appeal to POPLA. Your hand will now be limited to the points raised in this initial appeal.

If you can provide further details of each of the points in your appeal already submitted to POPLA, we'll see how we can help.

Coupon-mad

Do the signs say 'Ltd' and the PCN?

frobertson

KPS Kernow Parking Solutions 01736 762199 PO Box 333 Penzance Cornwall TR18 9DQ
[FONT=Arial,Arial][FONT=Arial,Arial]Ref;4396 Date 29/04/16 [/FONT][/FONT]
Dear POPLA,
[FONT=Arial,Arial][FONT=Arial,Arial]Upon parking in the car park in question Mr Robertson agreed to the terms and conditions of the car park which can be seen clearly on multiple signs around the car park and at the pay and display machines. They state that vehicles need to display clearly a valid parking ticket. As you can see from the photographs, our operative was very thorough, but could not see a ticket in the appellant’s vehicle. Photographs of the signage and the vehicle have been uploaded along with a site map.
The terms and conditions also state that you agree to your vehicle being subject of a Parking Charge Notice (PCN) should you fail to abide by the terms and conditions of the car park. The signage goes on to say that the cost of a PCN is £100 reduced to £60 if paid within 14days. If Mr Robertson did not agree with the terms of the parking contract he should not have parked at the location in question.
It is the responsibility of the motorist to ensure that their ticket is displayed correctly when leaving their vehicle. Mr Robertson did not check that his ticket was displayed correctly, he did not fulfil his responsibility which left him in breach of the terms and conditions of the car park. Operative 01 correctly issued the appellant with PCN 4419.
Mr Robertson as selected the section of the POPLA online form which states that he has already paid the parking charge notice, and has given the date as 30/3/16. This is not the case. The charge for this PCN is still outstanding.
The appellant claims that the parking tickets are not sticky so he could not fulfil his responsibility. Our parking tickets are purchased from a BPA recommended source and are widely used across the country.
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]Mr Robertson states [/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]"[/FONT][/FONT]I had bought a ticket covering my time parked so KPS had not lost any revenue[FONT=Arial,Arial][FONT=Arial,Arial]. [/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]The charge is not to cover the loss of revenue from the Pay and Display machine. The charged is based on a genuine pre-estimate of loss incurred by KPS as a direct result of issuing a PCN. We do not have to prove this loss as our charge is within the guidelines of the BPA code of practice. During October 2012 after significant pressure from Government and motoring/consumer organisations, the BPA reduced the maximum recommended charge for that a motorist should be expected to pay for a breach of the parking contract or for an act of trespass from £150 to 100. Despite the BPA being unable, due to prevailing legislation, to fix prices at this level, the actions of the Association were welcomed by all stakeholders. In this instance the charge being levied is within the recommendations set out within Clause 19.5 of the BPA Code of Practice. [/FONT][/FONT]
[FONT=Arial,Arial][FONT=Arial,Arial] This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner of the site.
[/FONT][/FONT][FONT=Arial,Arial][FONT=Arial,Arial]Parking Charges set within the guidelines of the BPA code of practice are fair and reasonable, and have been tested at the Court of Appeal. A Parking Charge was found by HHJ Hegarty QC in the case of Parking Eye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist [/FONT][/FONT][FONT=Times New Roman,Times New Roman PSMT][FONT=Times New Roman,Times New Roman PSMT]R.Ley T/A Kernow Parking Solutions (KPS) Company Service of documents address; Kernow Parking Solutions, 13-15 Commercial Road, Hayle, Cornwall, TR27 4DE [/FONT][/FONT]
[FONT=Arial,Arial][FONT=Arial,Arial](when exceeding the specified time limit) would be contractually bound. See also Combined Parking Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007). Further evidence, that parking charges cannot be viewed as penalties, can be found in Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [2008] and Combined Parking Solutions v De Brunner [2007]. Beavis v ParkingEye [2015] The Supreme Court ruling supported the view of the Court of Appeal judges in April last year and that of Judge Moloney that the charge should be an effective deterrent. The judgment confirms that the current charging level is lawful and reasonable and motorists parking on private land must comply with the advertised terms and conditions.
In the POPLA evidence pack we have provided clear evidence that by staying at the location, the motorist has accepted all of the prevailing terms & conditions of the parking contract including the charges for not complying with the advertised terms and conditions. There are multiple signs at the parking location, both at the entrance and throughout the site which offer the parking contract to the motorist, and sets out the terms and conditions of the parking area on which the operator will rely, and on which the motorist has agreed to be bound by which will become payable if the terms and conditions of parking are not met.
As PCN 4419 was issued correctly and in line with the BPA code of Practice we request that this appeal is rejected. Yours Sincerely KPS


Dear Coupon-mad


This is KPS's case file received by us on 16th May. They kept saying to Popla they had sent it but in the end it had to come via Popla as we never received the emails KPS said they had sent. The parking ticket was received on 30th March and we wrote back to KPS one day later saying the ticket had been placed on the dashboard but as it is a windy coastal site, the ticket must have fallen off when the door shut.. It was later found on the floor.
9th April - Popla appeal submitted. 29th April Popla said they had received KPS case file and we should have a copy. We finally received the case file on 16th May..
...One point, as you say the ticket was purchased and the parking charge ticket attached to the window before KPS had formed a company. (Can you have a company with only one director)?
The address on this was PO Box 333 PZ TR18 9DQ. The name on the signage says Robert Ley T/A Kernow Parking Solutions.
[/FONT][/FONT]. When I said on the Popla form section that I had already paid for the parking charge I thought it meant the parking charge to park there, not the 'fine'...


I really wish I had thought about trying to find out more before I did Anything but this has never happened to us before. We really, really appreciate your help. So sorry but I cant get the typeface out of bold....
Best wishes
frobertson

Edna_Basher

Thanks for the details of KPS’s response to POPLA.

We can now see that you’re dealing with sole trader Robert Ley trading as Kernow Parking Solutions, rather than his newly-formed company. You trusted his better nature by submitting an appeal the day after the event to explain that a parking ticket had been purchased. Unfortunately you’ve found out that Mr Ley doesn’t have a better nature – a lesson learned, I suppose.

At this stage, POPLA will not entertain any new appeal points, so you can only work around what you included in your original submission to POPLA.

Based on POPLA’s past performance, I wouldn’t expect them to allow your appeal solely on the basis that a ticket had been purchased but that it had fallen off the dashboard.

Did you raise any other points in your appeal? For example, inadequate car park signage, no authority from the landowner, unreasonable and unfair level of the charge (I see that Mr. Ley claims that £100 represents a genuine pre-estimate of loss incurred as a direct result of issuing the PCN). These would all be things to work on in your rebuttal of Mr. Ley’s evidence.

hoohoo

I would raise the issue of charges. Edit this to put in the actual details (eg cost of parking etc)

The operator has confirmed their charge is not a pre-estimate of loss, and asserted it does not have to be. This is not correct. The leading case on this matter is ParkingEye v Beavis UKSC 167 [2015]. This case explains that the penalties rule is engaged, but that it may no apply in some circumstances.

In that case, it was agreed by both parties that the signage was clear and ample and that a contract was in place. The penalty charge was displayed in a huge font in contrasting colours.

This is not the case here. This means that the charge is both a penatly and an unfair term.

For reference, the clauses in Beavis referring to a requirement for clear signage and the penalty level clearly visible are here

Para 90. At all material times since then, ParkingEye has displayed about 20 signs at the entrance to the car park and at frequent intervals throughout it. The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.
Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”
Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take I t or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85. Motorists could hardly avoid reading the notice and were under no pressure to accept its terms”
Para 123. The signs exhibited at the entrance and throughout the car park are large, prominent and legible.
Para 198 But the scheme is transparent, and the risk which the customer accepts is clear.
Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”
Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
Para 212 It is difficult to categorise as not in good faith a simple and familiar provision of this sort of which very clear notice was given to the consumer in advance.
Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable
2. It is clear therefore that an integral part of whether a parking charge is a penalty and/or an unfair consumer term is that there is clear and ample signage on site so the motorist will have a fair chance of seeing the parking signs and then can make a considered decision on whether or not to accept the contract.
3. The Beavis test then, of whether the conditions are prominently displayed fails both in the number and placement of signs. The charge is therefore not saved from being an unfair penalty, and not saved from being an unfair consumer charge, under the Unfair Terms In Consumer Rights Act 2015 (Requirement for contract terms and notices to be fair).

Additionally, in the Beavis case a large charge was the only way to get rid of cars after 2 hours free parking. In this case, the operator is alleging a parking fee was not paid (which is denied).

The charge is for a failure to pay a sum of around £4. It is submitted that the Beavis decision is not applicable in this case. In the Beavis case a charge of £85 was needed as an absolute deterrent to stop free parking after 2 hours. In this case, parking is around £4 per day. The operator has therefore accepted by their own terms and conditions that there is no commercial justification for a charge of £100. The normal commercial procedures would be to issue an invoice for £4, plus a reasonable administration charge to cover the £2.50 DVLA fee and £0.50 postage. Only if this is not then paid would other charges be applicable.

The Court of Appeal Ruling States:

46. The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed, unless that rate were also substantial, and well above what might be regarded as a market rate for the elapsed time, even if the market rate were in some way adjusted to take account of the benefit to the driver of the first two hours being free.

As this current car park does employ essentially a ‘rate per hour’, this can easily be distinguished from the Beavis judgement. The judgment continues:

47. It seems to me that the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is a disincentive, or deterrent, against overstaying. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum (TST: presumably the hourly rate), and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

It is clear that in this case Kemble v Farren (1829) 6 Bing applies. This is a clear case of a very large sum being immediately payable in consequence of the non-payment of a very small sum, and is therefore not allowable.

This is therefore a penalty charge and not allowable.

frobertson

....Hello and thank you so much for this amazing help I am being given..Will go through your email in a mo and edit and review...In the meantime Do you know if I can ask Popla for a copy of the appeal I filled in online with them. I have a new knee operation tomorrow and have to go to hospital at 6 am in the morning so my mind going dingbats all over the place....I cant remember Exactly the wording of my appeal as it was done weeks ago...and won't be back on computer for about 2 days. I will get my family here to go through any emails and let me know what's happening.
Again grateful for help...and thank you

frobertson

Thank you for all the trouble you have taken. As my husband had to go to hospital I have taken this on and have been given another 7 days by Popla (now 4 as I haven't been able to look at it til now)...Will do my best but find the legal 'speak' impossible to edit BUT thank you very much anyway.
Going through the newby threads someone said Beavis wasn't a case anymore: i.e. Is Beavis still relevant as I thought I read somewhere that Beavis was now not relevant?
If I cant get back to Popla in time can you tell me what happens next. Do KPS then insist I pay the fine or do Popla or do 'the courts' say I have lost the case already.
The sign does not say LTD but does say PCN will cost £100. I am told KPS is Not the owner of the land. Can copy my husband's four line appeal to Popla if helpful as they have now sent me a copy. Basically says that we had purchased a ticket. Tried to stick it on the dashboard but there was no sticky and the wind of the door shutting must have blown the ticket to the floor.....and that as he had purchased the ticket well covering the time he was in the car park then KPS were not out of pocket.
Thank you in advance to anyone who thinks they can help...Honestly at the moment with a sick husband I feel like just ignoring the whole thing. I am also nervous now that KPS know our address as have seen on the forum site that someone wouldn't put it past him to 'get the heavies in'!

Coupon-mad

Can copy my husband's four line appeal to Popla if helpful as they have now sent me a copy.

Not helpful.

Someone might have time to assist you but unfortunately, I don't due to work.

pogofish

frobertson wrote: »

Have just discovered that KPS now does appear to have become a company with Robert Ley as the sole director appointed on 25th April 2016.

Robert Ley - Is someone taking the proverbial?



https://en.wikipedia.org/wiki/Robert_Ley

Or using a made-up identity?